Format Rights
Format rights in Television Programmes are widely traded. They comprise, as their name suggests, rights to the formats of the programmes which may either be structures replicated in each episode of a programme (such as in The Crystal Maze) or in each series of a programme (such as in American Idol) or a combination of the two possibilities.
The trouble with format rights is that although they are widely licensed, with their annual global trade running into billions of dollars, format rights are not traditionally recognised intellectual property rights, and the law has (as is often the case) been having a hard time trying to keep up with realities of the commercial and media worlds.
In fact, format rights are so widely recognised by industry that even the Tabilan has, amazingly enough, reportedly obtained a licence from the BBC for the programme What Not to Wear. Formats, as has been repeatedly proved in the commercial world, are reliable money-makers, and it makes sense to use them to attempt to guarantee high viewership and increased revenues. As a result, they are routinely licensed.
Companies have, however, realised that the licensing of format rights is sustainable only as long as format rights are treated as being valuable rights worthy of intellectual property protection by courts, and in recent years, there has been a surge of litigation throughout the world related to format rights as a result of companies trying to protect them (and the benefits they reap by licensing them).
The first case which could be considered to be a format rights case is the 1989 case of Hughie Green v. Broadcasting Corporation of New Zealand. In this case, Hughie Green effectively claimed format rights in his programme Opportunity Knocks. The courts weren’t entirely impressed with his claims though and his actions were unsuccessful. Many lawyers seem to believe that had he initiated legal proceedings today, he would have been far more likely to succeed because of the changed climate and the (rather grudging) acceptance which the judiciary has accorded to format rights.
Also, apart from the fact that Hughie Green failed to show that the format of his show which had been broadcast in England enjoyed any reputation in New Zealand, his format itself was rather sketchy. Nowadays, formats contained in ‘Production Bibles’ tend to be very detailed and, in fact, a Belgian court has, in a judgment regarding format rights spoken about what should be included in a Production Bible to give the owner of a format a chance of success should he choose to initiate legal proceedings to protect his format.
In a 2008 judgment, the Brussels Tribunal of First Instance said that it was not enough for the idea of the format to be original; its description in the document should express its creator’s personality and the intellectual effort the creator claims to have invested in it. Merely enumerating a number of ideas and games, none of which is developed concretely and graphically is insufficient. There must be an adequate number of concrete elements to be considered a copyright-protected format; it should be possible to visualize an episode on the basis of the document. For example, the document should specify whether it relates to a single episode or a series. If the latter, it should also specify: (i) how many episodes would make up the series; (ii) how long each episode would be; how the episodes (or the series as a whole) would be structured; and (iii) how this structure would be reflected in the timing and overall length. Moreover, the document should: (i) state how the programme would be presented; (ii) indicate how the various tests would be shown in a particular episode or the order in which the tests would take place; or (iii) describe in practical terms: how the tests would be conducted, how the questions would be presented or how the winner of the series would be chosen. A vague description of a few ideas which could be used as a basis for numerous different television programmes, each with different characteristics cannot be a protected format.
As such, it would seem that the judiciary is willing to recognise format rights if they are systematically documented, and that documentation was proved. The documentation could include not just the Production Bible concerned but also such things as relevant trade mark certificates, and copyright registrations for, say, music which is integral to the format.
The first instance of format rights being recognised by a court, however, was not in this 2008 Belgian judgment but several years earlier in a 2001 case where format rights were recognised by the Hungarian Supreme Court in a dispute regarding a radio show, Cappuccino. Since then, there have been quite a few instances across the world where format rights have been recognised and protected. However, the protection accorded to them has often been extremely dependent on the facts and circumstances of the dispute in question, and there have been many instances where format rights have not been protected only under copyright law but under laws as diverse as those related to unfair market practices and breaches of confidence.
In fact, in India, although the courts have indicated that the Indian Copyright Act can protect formats, the fact is that the courts have, so far, only adjudicated disputes where the ownership (and violation) of format rights has been entwined with issues of confidentiality having been breached (as the format rights owners had communicated their formats to those accused of having violated them). This may soon change, but at the moment, Indian law on the subject is not entirely clear. And till the law is clearly defined, there will continue to be a shadow, of sorts, over the format rights licensing industry.
By Nandita Saikia
